Housley v. Burrows ( 1998 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 28 1998
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JIM R. HOUSLEY,
Plaintiff-Appellant,
v. No. 98-6022
(D.C. No. 97-CV-1532)
LARRY BURROWS, Sheriff of (W.D. Okla.)
Washita County; ALFRED MILLER,
Washita County Commissioner;
GENE ETRIS, Washita County
Commissioner; FRANK HOHKE,
Washita County Commissioner;
BOBBY BOONE, Warden of MACC,
Defendants-Appellees,
and
DWAYNE MCFARLIN; CHARLIE
CARLTON; CARL MCBEE; CHIEF
REED, Head of Arkansas Highway
Patrol; OFFICER HUMPHRIES,
Highway Patrol Officer; THE
LIVING WORLD CHURCH; TOM
BRYANT; JOHN DOE, Director,
Energy; JOHN DOE, Officer at Hope
Arkansas; J. D. BIGGS, Dispatcher at
Marion County Sheriff’s Office;
OFFICER STAUBAH; LARRY
WILLIAMS; LEWIS FLOWERS;
SID COOKERLY,
Defendants.
ORDER AND JUDGMENT *
Before BRORBY , BRISCOE , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff Jim R. Housley appeals from the district court’s dismissal of his
civil rights action filed pursuant to 42 U.S.C. § 1983. 1
Because we conclude the
appeal is frivolous, we dismiss the appeal.
Plaintiff commenced this civil rights action in the United States District
Court for the Eastern District of Oklahoma, alleging that defendants Larry
Burrows, Alfred Miller, Gene Etris, and Frank Hohke, the Sheriff and
Commissioners of Washita County, Oklahoma, violated his Eighth and Fourteenth
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
1
Plaintiff proceeded in the district court in forma pauperis. After the district
court denied leave to appeal in forma pauperis, he paid the filing fee.
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Amendment rights by denying him access to a law library and physical exercise
during his incarceration in the Washita County jail. He also alleged that
defendant Bobby Boone, the warden of the Mack Alford Correctional Center in
Stringtown, Oklahoma denied him access to a law library. The district court
dismissed the action against the Washita County defendants as barred by the
statute of limitations. It dismissed the action against Boone as without merit.
Plaintiff appealed only the district court’s dismissal of his claims against the
Washita County defendants. See Housley v. Burrows , No. 95-7088, 1996 WL
293828, at **1 & n.1 (10th Cir. June 4, 1996) (unpublished order and judgment).
This court reversed and remanded for further proceedings on the claims against
those defendants. See id. at **2.
On remand, plaintiff filed three amended complaints naming additional
defendants and adding claims for, among other things, malicious prosecution and
false imprisonment. The district court struck the first two amended complaints as
the named defendants resided in Arkansas. Because the remanded claims and the
new claims in the third amended complaint concerned defendants who resided in
Washita County, which is in the Western District of Oklahoma, and all of the acts
complained of occurred in that district, the district court for the Eastern District
determined that proper venue was in the Western District and transferred the case
to that district.
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Once transferred, the magistrate judge for the Western District
recommended that the case be dismissed for several reasons. First, he determined
that the original complaint and the third amended complaint were meritless and
legally frivolous. Second, he recognized that plaintiff was subject to in forma
pauperis filing restrictions in the Western District. See Housley v. Williams , Nos.
92-6110, 92-6113, 92-6190, 92-6189, 92-6119, 92-6212, 92-6115, 92-6191,
1993 WL 76250, at **3 n.8 (10th Cir. Mar. 12, 1993) (unpublished order and
judgment) (affirming filing restrictions); see also Housley v. Rowe , No. 94-6329,
1995 WL 94458, at **1 (10th Cir. Feb. 28, 1995) (unpublished order and
judgment) (recognizing this plaintiff’s abusive and lengthy litigation history and
restrictions imposed on his filing of pro se actions). The magistrate judge found
that plaintiff brought this frivolous and malicious action in the Eastern District to
circumvent those filing restrictions. Finally, the magistrate judge found that
plaintiff had failed to notify the court that he is no longer indigent.
Upon de novo review, the district court adopted the magistrate judge’s
findings and recommendations, except for the finding that plaintiff is no longer
indigent, and dismissed the action. The district court emphasized that plaintiff
abused the privilege of filing suits in forma pauperis and that he filed this suit in
the Eastern District to avoid the filing restrictions imposed in the Western
District. Further, the court noted that plaintiff abandoned the claims upon which
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this court had remanded the case. The district court deemed the abandonment to
be a tacit admission that the claims lacked merit, again showing plaintiff’s abuse
of the litigation process.
On appeal, plaintiff continues to raise the same arguments he raised in the
district court. 2
Additionally, he argues that he did not violate the filing
restrictions or bring this case in bad faith, because he filed the action when he
was a prisoner confined in the Eastern District. He also challenges the striking of
his first two amended complaints.
All of plaintiff’s arguments on appeal are vague and conclusory, including
his argument that he did not violate the filing restrictions. For substantially the
reasons stated in the magistrate judge’s findings and recommendation filed
October 28, 1997, and the district court’s order filed December 30, 1997, we
agree that plaintiff abused the litigation process and circumvented the filing
restrictions. Neither our previous remand nor any actions by the Eastern District
precluded the Western District from dismissing plaintiff’s complaint for failing to
follow the filing restrictions of the Western District, where the case should have
been filed initially. See Housley v. Boone , No. 94-6026, 1994 WL 699172, at **1
2
For the first time on appeal, he also argues that, while he was incarcerated
in the Washita County jail, he suffered an allergic reaction when he was sprayed
with bug spray and he was forced to endure second hand smoke from other
inmates. We refuse to consider these newly raised arguments. See Lyons v.
Jefferson Bank & Trust , 994 F.2d 716, 720-21 (10th Cir. 1993).
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& n.3 (10th Cir. Dec. 14, 1994) (unpublished order and judgment) (“[T]he Eastern
District’s [grant of leave to proceed in forma pauperis prior to transfer of the
action did] not preclude the Western District from dismissing the [habeas]
petition for failure to follow filing requirements. Housley was required to follow
the valid restrictions imposed by the jurisdiction in which his action properly
should have been filed.”). To the extent plaintiff seeks to challenge the transfer
of the action from the Eastern to the Western District or the striking of the two
amended complaints, it appears that he waived these arguments in the district
court and, in any event, they are without merit.
Accordingly, we conclude this appeal is frivolous under 28 U.S.C.
§ 1915(e)(2)(B)(i). The appeal is therefore DISMISSED. Plaintiff’s motion for
enforcement of remand is DENIED as moot. The mandate shall issue forthwith.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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Attachment not available electronically.